The Sugandika Fernando blitzkrieg: A word of cautionPosted on April 28th, 2018

by C.A.Chandraprema Courtesy The Island

April 28, 2018, 7:58 pm

The 56 minute vido of a speech by a young, hitherto unknown lawyer named Sugandhika Fernando exposing to the public the seamy underside of the legal profession and the judiciary took the country by storm after the New Year. This vido became a sensation overnight even though it was not taken up by any of the formal media in the country. It has gone viral on the internet because there was an appetite among the general public for something like this. The judiciary in this country is looked upon with fear and the legal profession is considered rapacious and explotative. One sees a whole syetem in operation whereby judges and lawyers gang up and work together in portraying the judiciary and the legal profession as something sacrosanct and which should never be questioned.

Of the three arms of the state, the executive, the legislature and the judiciary, the former two are subject to public scrunity and criticism whereas the judiciary is safeguarded by the legal profession as something above question. However, members of the public are only too well aware of the abuses that go on in the legal system but are too afraid to voice their critical opinions because of the power the court to invoke contempt of court laws. The Judiciary (and by association the legal profession) is the only arm of the state that can muzzle criticism of itself. If the executive arm does anything of the sort, it is called ‘repression of dissent’ but when done by the judiciary, it’s called ‘upholding the independence of the judiciary’ and is touted as a virtue. Recently, Deputy Minister Ranjan Ramanayake made some blanket statements criticizing the legal profession and the judiciary and he is now facing a contempt of court action.

Ramanayake’s broadside was a generalized critique of the way the judiciary and the legal profession functions, without any specifics being mentioned. Some of the assertions he made may be questioned even by those sympathetic to the overall point he was trying to make. For example, he characterized as ‘rogues’ the lawyers who appear for known criminals. However there is a requirement that every suspect appearing in court has a right to be represented. It is through an adversarial presentation of arguments that the court is able to decide on the guilt or innocence of the suspect or the accused. Nobody has yet invented a better way of doing things. By characterizing as ‘rogues’ the lawyers who appear for known criminals, Ramanayake is going down the slippery slope of declaring people guilty without any due process, simply on impressions and prejudices. The rule that a person is deemed innocent until proved guilty should apply to everyone even those generally known to be professional criminals.

Unlike Ramanayake’s blanket statements, Sugandika Fernando’s critique of the judiciary and legal system was based on personal experience and replete with specific examples which is why it resonated so well with the public. The public needed what Sugandika did and I dare say the judiciary and the legal procession needed it too. Hopefully, this opening will give rise to a hundred more Sugandikas and that should be welcomed by the legal profession and the judiciary as a necessary cleansing process. While commending Attorney at Law Sugandika Fernando for the courage she displayed, we should also sound a word of caution.

A closer look at what Sugandika said

Due to the fear of the judiciary in this country, Sugandika’s fearless broadside gained a lot of attention. We have had newspapers like the Ravaya publishing articles alleging various misdeeds of judges in the past but those were focused on individuals whereas Sugandika’s indictment was of the whole judicial and legal system. What did Sugandika talk about during her 56 minute speech?

1. An Additional District Judge arriving drunk for a session of the court during court vacation and having lime applied on his head and feet and given king coconut water to drink by lawyers and court official’s to get him into a fit state to sit on the bench.

2. The inordinate power of the court Mudaliyar who can delay cases at his whim and fancy to harass lawyers.

3. The inappropriate camaraderie that exist between judges and the court officials serving under them.

4. Corrupt court officials releasing suspended licenses.

5. In one instance a warrant issued by the Magistrate had been recalled by the court Arachchi.

6.In illegal sand mining cases where the fine is Rs. 50,000, the court Mudaliyar sees to it that the case is dismissed for a bribe of Rs. 30,000 thus depriving the government of revenue.

7. Lawyers give bribes to the various branches of the local police to obtain cases.

8. Lawyers routinely fraternize with the police and bribe them so as to obtain the their cooperation to win their cases.

9. In one instance, a politician who had fired twice in the air and hit someone on the head with his pistol, was granted bail by a Magistrate because a Deputy Solicitor General of the Attorney General’s Dept. had written to the courts stating that the pistol had in this instance been used not as a firearm but as a blunt instrument. Bail could not be granted by the Magistrate if the offence had come under the firearms ordinance.

10. In an instance when one of her clients had been arrested with a firearm which had neither been fired nor used as a blunt instrument, she too had been granted relief by the AG’s Dept. under the earlier precedent.

11. She had received death threats for challenging the police and court officials.

12. Police officers show scant respect for young lawyers and in once instance when she went for an inquiry regarding a fraud involving Rs. 80,000, a police officer had tried to browbeat them into paying the Rs. 80,000 without any inquiry being held.

13. Judges can harass lawyers who do not humour them by not granting relief and denying bail to clients in criminal cases or at times even by not granting divorces.

14. Lawyers obtain sexual bribes from the wives of the suspects they appear for.

15. Female lawyers sleep with police officers to obtain cases.

16. Lawyers do not issue receipts to their clients when accepting fees so as to avoid paying income tax.

17. Junior female lawyers are sexually harassed by senior lawyers.

18. Senior lawyers do not pay their apprentice lawyers anything and junior lawyers get only a pittance from their seniors.

19. Senior lawyers go with pots of curd and bottles of treacle to see bank managers to obtain notarial work.

20. Senior lawyers accept very low fees like Rs. 50 for illicit liquor related cases where the suspects merely plead guilty and are fined so as to undercut junior lawyers and to prevent them from building up a practice.

That is essentially what Sugandika Fernando said. Looking at this in hindsight, one realizes that her expose of the underbelly of the legal profession and the judiciary though sensational, dealt only with minor issues, not major ones. Her speech was sensational only because it was about the judiciary and the legal profession which has not been criticized in that manner in public before. Everything that was said by her is applicable not just to the judiciary or the legal profession, but to the police, the public service and any other profession or sphere that one can think of. A judge is said to have arrived drunk to court. More than two hundred years ago in 1803, one of the charges against the first US federal judge to be impeached, Judge John Pickering of the district court for New Hampshire, was that he was roaring drunk and bellowing imprecations while presiding on the bench. The charge against Judge Pickering in the articles of impeachment in the quaint language of that era went as follows:

“That whereas for the due, faithful, and impartial administration of justice, temperance and sobriety are essential qualities in the character of a judge, yet the said John Pickering, being a man of loose morals and intemperate habits, on the 11th and 12th days of November, in the year 1802, being then judge of the district court in and for the district of New Hampshire, did appear on the bench of the said court for the administration of justice in a state of total intoxication, produced by the free and intemperate use of intoxicating liquors; and did then and there frequently, in a most profane and indecent manner, invoke the name of the Supreme Being, to the evil example of all the good citizens of the United States; and was then and there guilty of other high misdemeanors, disgraceful to his own character as a judge and degrading to the honor of the United States.”

The need to deal with major infractions first

As for major and minor corruption in the judiciary the legal profession and in any other sphere, that has always been the order of the universe and we should be careful about the conclusions we arrive at when we hear exposes of such corruption. For instance, another charge against the first US judge to be impeached during the era when the Nayakkar King Rajadhi Rajasinghe was on the throne in Kandy would sound much like some of the instances of impropriety that Sugandika exposed. This was the improper release by Judge Pickering of a ship that had been seized by the US government, for the non-payment of dues. He had released the ship to its owners after refusing to hear the testimony of witnesses presented on behalf of the US government. Crooked practices and corruption are as old as mankind and anything that goes on today has been going on from the time mankind started walking upright. It is certainly true that even petty corruption like court officers expecting tips for doing their assigned work can prove to be frustrating especially when the corrupt official stonewalls until he is paid.

However, we have to see things in perspective. Sugandika Fernando’s mentor, public interest lawyer Nagananda Kodituwakku is best known for his fight over the sale of duty free vehicles by MPs. The argument being that these were given duty free to MPs, to use for their work and when these are sold to outsiders, the government has to forfeit the import duty that would otherwise have been due on those vehicles. One has to wonder whether this is not unnecessary nit picking. Many university dons and public servants also sell their duty free permits. It is true that when these people sell the permits given to them, and somebody else uses that vehicle, the state has to forego the tax income they would otherwise have got. But it is understood that these duty free permits are one of the perks enjoyed by those who are entitled to them and can hardly be considered an abuse.

The former head of the Federation of University Teachers’ Assocations (FUTA) Nirmal Ranjith Devasiri candidly told this writer that he himself had sold his permits. I would not under any circumstances fault him on that account. However I was very interested in how the Federation of University Teachers’ Assocations financed their three month strike of 2012 but never received a proper answer from Devasiri or anyone else. FUTA offered each of the striking university lecturers a payment of Rs. 50,000 during the period of the strike. Given the fact that there were over 4000 university lecturers, FUTA would need over Rs. 200 million just to make one such payment. When asked from where they got the money to offer a payment of Rs. 50,000 to each striker, FUTA said it was from ‘wellwishers’. After the strike ended, when this writer asked the then Secretary of FUTA, they said that they had not yet decided whether they were going to disclose the sources of their funding or not.

What a real corruption watchdog should be doing is not making a big issue of the sale of vehicle permits, or making an issue of a judge coming drunk for work during a court vaction or the petty thieving that court officials do, but dealing with major issues first, before looking into lesser matters. This writer cannot remember Nagananda Kodituwakku talking much about issues like the bond scam, the coal scam, the paddy scam, the central highway scam and other such matters. We did see him challenging the appointment of 10 defeated candidates on the UPFA national list which is indeed an issue that needed to be looked into and is in the league of things that should interest Mr Kodituwakku. The issue a court Mudaliyar taking bribes to release suspended driving licenses should take second place to investigating what USAID was doing by pumping money into the Sri Lanka Bar Association for various projects.

That female lawyers sleep with policemen to obtain briefs and that senior lawyers take pots of curd to bank managers to get notarial work are not as important as the scandalous conflict of interest that takes place when a judge serving on a Commission of Inquiry hand picked and appointed by the President of the present government to look into corruption of the previous government at the same time hears and delivers a seriously flawed judgment against a high official of the very government he was investigating. Then there is the even more scandalous situation whereby the high court judge appointed to head the Commission of Inquiry into Serious Allegations of Bribery and Corruption is in no time promoted to the Appeal Court and after the report of the Commission is handed over, he is promoted over the heads of six other judges to become the President of the Court of Appeal. It is vital that anti-corruption activists should concentrate on major issues and leave minor issues for later, lest they begin to look like lunatic fringe activists. Such a perception will undermine the whole campaign against corruption.

Why criticism should be welcomed

The value of the opening provided by Sugandika should not be underestimated. There was a culture within the legal profession and the judiciary of closing ranks to deny and conceal wrongdoing even in the face of overwhelming evidence. This could be seen during the impeachment proceedings against former CJ Shirani Bandaranayake. While it is true that the Rajapaksa government decided to impeach Mrs. Bandaranakaye only after she fell out with them, the important point to note is that she fell out with the Rajapaksas only after her husband who was serving as the Chairman of the National Savings Bank was removed following agitation by the bank unions over a questionable deal involving the shares of The Finance Co. After the removal of her husband from that position, the former CJ began giving judgments such as the determination she gave on the Divineguma Bill which a reasonable person would have reason to suspect was motivated by a desire to wreak vengeance on the government for removing her husband from his position.

The husband of the Chief Justice should not have been holding a political appointment in the government and that alone should have been sufficient to disqualify her from holding the position of Chief Justice. But after her husband was removed from the Chairmanship of the NSB and court proceedings were started against him, there was an unprecedented conflict of interest where she was presiding over the judiciary as Chief Justice while a criminal action was pending against her husband in the Magistrate’s court. Yet the entire judiciary and legal profession opposed her impeachment saying it was a violation of the independence of the judiciary. Nobody in the legal profession was bothered about the serious conflict of interest that takes place when the Chief Justice as the Chairman of the Judicial Services Commission has complete and total power over the Magistrate who was hearing the case against her husband.

A judge of the higher courts can only be removed by Parliament and to oppose the will of the legislature when they take action against a judge is to say that the Judiciary stands above everything and everybody and that they are right even when they do wrong. The judiciary and the legal profession had arrogated to itself absolute power. That has now been shaken by Ranjan Ramanayake and Sugandhika Fernando. Now that some headway has been made, it should not be frittered away by focusing only on minor issues. There are three kinds of criticism of judges and the courts. One is the kind of personalized attacks on judges and members of the legal profession made by websites operated from overseas. Such attacks are designed to intimidate and blackmail judges into giving judgments the way the website desires and that kind of criticism should be rejected by the public.

Then there is the open confrontation of people like Ranjan Ramanayake and Sugandika Fernando alleging specific and non-specific wrongdoing on the part of the courts and the legal profession. These criticisms should be given a hearing and not dismissed out of hand by the judiciary and the legal profession because. in the long term these broadsides will help them to eliminate or at least reduce the circumstances in which such criticisms can be made in the future. Such activists should also concentrate on the major issues first before going on to minor matters. The best and most constructive criticism is to analyze judgments and determinations given by the courts without imputing any motives to the judges so that the public can make up their own mind. The judiciary and legal profession should actively encourage the last mentioned form of scrutiny and criticism as that will help maintain the credibility and good image of the institutions dispensing justice.

6 Responses to “The Sugandika Fernando blitzkrieg: A word of caution”

Sri Lanka’s judicial system (just like all other public services) is corrupt and heavily politicised. All nations that developed and are truly developing have a far better functioning justice system.

The hybrid court we are worried today has its roots in 2013 when the CJ was illegally removed by politicians for giving the correct verdict (against the government). This is why the international community demands international lawyers and courts. Even locals don’t trust the courts system anymore. Futile to expect other countries to trust it.

Fixing the court system should be the top priority of the government. Nothing works in a lawless republic.

The judiciary unfortunately is a stone round the neck of Sri Lanka. Without Law and order no country can develop. Citizens complaints to the judiciary are never replied they are ignored. The police is a disgrace which is a part and parcel of of the poor law and order in the country. Even lawful court orders are obstructed by the police and the IGP and the judiciary ignores all complaints. It is time the government appoints Public commission to investigate the Police and the Judiciary.

Shirani Bandarakayake was sacked after due process in parliament which the UNP tried their best to scuttle and failing ran away.
On the one hand what Sugandika did was a need of the hour and on the other is a catalyst for those who are hell bent on denigrating our judiciary.
How ever it is now up to those in the judiciary with some morals to keep the continuity in ridding the judiciary of corrupt practices.

If something is illegal, it is illegal. Corruption is corruption. If the top administrators who should be an exemplary to the society, sell their duty free permits, that is not acceptable. Everyone knows, bond scam was the biggest robbery in the recent history. but it should not be an excuse for minor corruptions.
If a drunken judge delivers a judgement, is it acceptable? There were couple of big mistakes made during Rajapakse administration. Biggest mistake was the punishment given to Sarath Fonseka. As a citizen, he had the rights to contest any election. Sacking of Shirani Bandaranayake was another one.

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